F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
APR 20 2004
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v. No. 02-8110
ANDY JARDINE,
Defendant - Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF WYOMING
(D.C. NO. 02-CR-38-J)
Corinne A. Miller, Casper, Wyoming, for Defendant - Appellant.
Steven K. Sharpe, Assistant United States Attorney, Casper, Wyoming (Matthew
H. Mead, United States Attorney, and David A. Kubichek, Assistant United States
Attorney, Casper, Wyoming, on the brief), for Plaintiff - Appellee.
Before LUCERO , PORFILIO , and TYMKOVICH , Circuit Judges.
TYMKOVICH , Circuit Judge.
Defendant Andy Jardine appeals the denial of his motion to suppress and
the sentence imposed by the district court following his subsequent conviction on
two counts of being a felon and a person previously convicted of a crime of
domestic violence in possession of a firearm, in violation of 18 U.S.C. §§
922(g)(1) and (g)(9). Jardine contends that the district court should have
suppressed firearm evidence discovered during a search of his residence because
the warrant authorizing the search was based on impermissibly stale information.
He further contends that the district court illegally enhanced his sentence under
United States Sentencing Commission, Guidelines Manual, § 2K2.1(c) (Nov.
2001) (USSG). In applying that section’s cross-reference to § 2X1.1, the district
court found that Jardine had used or possessed a firearm in connection with the
commission of another offense – conspiracy to possess or distribute
methamphetamine.
Jardine was thus sentenced in accordance with the controlled substances
guideline, USSG § 2D1.1, and the court added a two level increase because
Jardine possessed a firearm in connection with the drug offense. See §
2D1.1(b)(1). The firearms used for the two level enhancement were not the same
firearms used to convict Jardine under § 922(g). Jardine argues his sentence
should be reversed because (1) no nexus existed between the firearms that
sustained his felon-in-possession convictions and the firearms that triggered the
cross-reference’s application; (2) application of § 2K2.1(c)’s cross-reference
violates his right to due process; and (3) his prior offenses were too remote in
2
time to constitute relevant conduct under the Guidelines. Exercising jurisdiction
pursuant to 28 U.S.C. § 1291, we affirm.
I. Background
On January 9, 2002, drug enforcement officials obtained a search warrant for
Andy Jardine’s Lovell, Wyoming, residence. The supporting affidavit contained
statements by cooperating witnesses which demonstrated that Jardine had been
actively dealing methamphetamine between April 2000 and May 2001, including a
statement by a methamphetamine dealer named Juan Ortiz that Jardine had paid him
five “zip clips” of ammunition in exchange for drugs. In addition, the affidavit
recounted a January 8, 2002 interview with Michael King in which King stated that
Jardine had attempted to sell him methamphetamine the previous day.
The warrant, which was executed on the day of issuance, permitted officers
to search the residence and any vehicles located on the property for evidence of
controlled substances, materials used in the manufacture or distribution of
methamphetamine, and firearms. (VIII, 65 at 1). During the course of the search
officers recovered a Ruger .22 caliber rifle and assorted ammunition from a motor
home parked near the house. Id. While the search was in progress, Jardine arrived
at the house and DEA Special Agent Steve Woodson questioned him about the rifle.
(VIII, 65 at 2). After being advised of his Miranda rights, Jardine told Woodson
that he had been living at the residence with his girlfriend, Denise Gossens, for
3
three months and that an acquaintance named Beverly King had purchased the gun
for him. Id. Jardine also admitted to giving Juan Ortiz ammunition in exchange
for methamphetamine on a previous occasion. Id. Because the search of the
premises did not reveal any evidence of drugs or drug trafficking, Jardine was not
arrested at that time.
Subsequently, on February 1, 2002, police arrested Jardine pursuant to a
warrant issued for his unlawful possession of the Ruger. Id. During a search of the
car he was driving at the time of his arrest, officers found a Savage .243 rifle in a
gun case located in plain view inside the car. Id. The car was registered to Ms.
Gossens.
Jardine was charged with two counts of being a felon and a person previously
convicted of domestic violence in possession of a firearm. Count one was based on
Jardine’s possession of the Ruger, while count two pertained to the Savage rifle
found in the vehicle. Taking the position that the initial search warrant for his
residence was based on stale information, Jardine filed a motion to suppress the
firearm evidence seized from the motor home, which the district court denied.
After a trial, the jury returned guilty verdicts on both counts of the indictment.
At sentencing, the district court accepted the presentence report’s
recommendation to enhance Jardine’s sentence by applying § 2K2.1(c)(1)(A)’s
cross-reference to § 2X1.1, and in so doing concluded that Jardine had used and
4
possessed firearms in connection with the commission of another offense –
specifically, conspiracy to possess or distribute fifty to two hundred grams of
methamphetamine. It based this determination on the prosecutor’s statement and
the testimony of DEA Special Agent Woodson, which established by way of off-
the-record proffers and Mirandized statements of seven individuals that Jardine (1)
was involved in the sale and purchase of methamphetamine between the years 1999
and 2002; (2) traded ammunition as partial payment for drugs on one occasion; (3)
threatened a man named Michael King with a .44 magnum; and (4) carried a 9mm
Glock and a smaller firearm with him while buying drugs in Idaho.
The district court applied the controlled substance guideline found at USSG
§ 2D1.1 as to the drug quantity and arrived at a base offense level of 26. The court
then applied the specific offense characteristic contained in § 2D1.1(b)(1) and
increased Jardine’s offense level by two because he possessed a firearm during the
drug offense. Application of the Guidelines resulted in an offense level of 28.
Based on a criminal history category of II, the district court determined Jardine’s
sentencing range to be 87 to 108 months, and sentenced him to the maximum of
108 months imprisonment.
II. The Search Warrant
Jardine first contends that the firearm evidence obtained from the motor
home should have been suppressed because the information contained in the search
5
warrant’s supporting affidavit was impermissibly stale. When reviewing a district
court’s denial of a motion to suppress, this court accepts the district court’s factual
findings unless they are clearly erroneous, viewing the evidence in the light most
favorable to the government. United States v. Basham, 268 F.3d 1199, 1203 (10th
Cir. 2001). However, the ultimate determination of reasonableness under the
Fourth Amendment is a question of law we review de novo. United States v.
Green, 178 F.3d 1099, 1104 (10th Cir. 1999).
In determining whether a search warrant is supported by probable cause, this
court “reviews the sufficiency of the affidavit upon which a warrant is issued by
looking at the totality of the circumstances and simply ensuring ‘that the magistrate
had a substantial basis for concluding that probable cause existed.’” United States
v. Tisdale, 248 F.3d 964, 970 (10th Cir. 2001) (quoting Illinois v. Gates, 462 U.S.
213, 238-39 (1983)). Probable cause exists “only when the supporting affidavit
sets forth facts that would lead a prudent person to believe there is a fair
probability that contraband or evidence of a crime will be found in a particular
place.” Basham, 268 F.3d at 1203. “Probable cause to search cannot be based on
stale information that no longer suggests that the items sought will be found in the
place to be searched.” United States v. Snow, 919 F.2d 1458, 1459 (10th Cir.
1990). “The determination of timeliness, however, does not depend on simply the
number of days that have elapsed between the facts relied on and the issuance of
6
the warrant; instead, whether the information is too stale to establish probable
cause depends on the nature of the criminal activity, the length of the activity, and
the nature of the property to be seized.” Id. at 1460 (internal quotations omitted).
Where the offense in question is ongoing and continuing, the passage of time is not
of critical importance. United States v. Mathis, 357 F.3d 1200, 1207 (10th Cir.
2004); United States v. Le, 173 F.3d 1258, 1267 (10th Cir. 1999).
Other circuits have held that more recent events in an affidavit can refresh
otherwise dated information. For example, in United States v. Spikes, 158 F.3d
913, 924 (6th Cir. 1998), the Sixth Circuit held that an affidavit describing a four-
year long drug trafficking operation supported a finding of probable cause because,
“even assuming the information in the affidavit was in some respects ‘stale,’ the
more recent events related therein refreshed this otherwise stale information.” This
principle was applied again in United States v. Greene, 250 F.3d 471, 481 (6th Cir.
2001), where the Sixth Circuit held that twenty-three month old information in an
affidavit was refreshed by subsequent corroboration from an informant. See also
United States v. Ozar, 50 F.3d 1440, 1446-47 (8th Cir. 1995) (probable cause may
be found where recent information corroborates otherwise stale information);
United States v. Bucuvalas, 970 F.2d 937, 940 (1st Cir. 1992) (“Staleness does not
undermine the probable cause determination if the affidavit contains information
that updates, substantiates, or corroborates the stale material.”), abrogated on other
7
grounds by Cleveland v. United States, 531 U.S. 12 (2000). We find this to be a
sensible approach to the problem presented by an affidavit which describes both
dated and recent facts. See 2 W AYNE R. L A F AVE , S EARCH & S EIZURE § 3.7 at 347
(3d ed. 1996 & Supp. 2004) (“more recent events may take on greater significance
when considered together with other facts which are not as current but which were
much more incriminating at the time they occurred”).
Here, police sought the warrant on January 9, 2002. Some of the events
described in the supporting affidavit concerned Jardine’s activities prior to May of
2001, eight months before the warrant was obtained. Taken alone, it is doubtful
that this earlier information would establish probable cause to search Jardine’s
current residence. But that was not all the information available to the district
judge issuing the warrant. First, the affidavit recounted a July 2001 police
interview of Jardine during which Jardine admitted purchasing methamphetamine
from police informants. Second, the affidavit stated that, only a few days before
seeking the warrant, police interviewed two witnesses who claimed they had
purchased drugs from Jardine in the past. Finally, the day before the warrant was
obtained, January 8, 2002, Michael King told police that Jardine had attempted to
sell him methamphetamine the previous day. The district judge thus had a picture
of Jardine’s drug activity over a nearly twelve month period, including up to a few
days before police sought the warrant. We accordingly agree with the district court
8
that King’s contemporaneous statements and the other evidence “refreshed” the
affidavit’s earlier facts and, taken together, established probable cause for the
search.
In support of our conclusion, we also note that the events described in the
affidavit show Jardine’s drug offenses were ongoing. The affidavit contained
detailed information about Jardine’s drug activity between 1999 and May of 2001,
including statements from individuals who had purchased methamphetamine from
Jardine or sold drugs to him at regular intervals. In combination with King’s
corroborating statement, the affidavit demonstrated that Jardine’s
methamphetamine trafficking was an ongoing and continuing enterprise. See
Mathis, 357 F.3d at 1207 (information in affidavit not stale where defendant was
suspected of “continuous and ongoing drug activity”); United States v. Iiland, 254
F.3d 1264, 1269 (10th Cir. 2001) (information not stale where activities set out in
affidavit occurred three months before warrant was obtained because facts
demonstrated ongoing drug trafficking over considerable period of time); United
States v. Myers, 106 F.3d 936, 939 (10th Cir. 1997) (where defendant’s drug
activities were “ongoing and continuous,” five month gap between when police
received tips and search warrant was obtained did not render information stale); see
also Spikes, 158 F.3d at 924 (“even if a significant period has elapsed since a
defendant’s last reported criminal activity, it is still possible that, depending upon
9
the nature of the crime, a magistrate may properly infer that evidence of
wrongdoing is still to be found on the premises”).
Because we conclude that the district judge reasonably could believe that
evidence of wrongdoing would be discovered at Jardine’s residence, we hold that
probable cause existed to support the search. Given this conclusion, we need not
address Jardine’s argument first raised on appeal that the firearm seized during his
subsequent arrest – the warrant for which was based on evidence discovered in the
search of his residence – should be suppressed under the “fruit of the poisonous
tree” doctrine.
III. Sentencing Guidelines
Jardine objects on three grounds to the district court’s application of the
Sentencing Guidelines. He argues (1) the district court erred in enhancing his
sentence under USSG § 2K2.1 because no nexus existed between the firearms that
triggered that section’s cross-reference and the firearms that sustained his felon-in-
possession convictions; (2) application of § 2K2.1(c)’s cross-reference violates his
right to due process; and (3) his prior offenses were too remote to constitute
relevant conduct under the Guidelines. We review the district court’s interpretation
of the Sentencing Guidelines de novo, and its factual findings for clear error,
giving due deference to the district court’s application of the Guidelines to the
facts. United States v. Brown, 314 F.3d 1216, 1222 (10th Cir. 2003), cert. denied,
10
537 U.S. 1223 (2003).
A.
Section 2K2.1(c) provides as follows:
(1) If the defendant used or possessed any firearm or
ammunition in connection with the commission or
attempted commission of another offense, or possessed or
transferred a firearm or ammunition with knowledge or
intent that it would be used or possessed in connection
with another offense, apply --
(A) §2X1.1 (Attempt, Solicitation, or Conspiracy)
in respect to that other offense, if the resulting
offense level is greater than that determined above;
...
(emphasis added). In turn, § 2X1.1(a) directs the sentencing court to establish
defendant’s base offense level “from the guideline for the substantive offense . . .
.” 1 In this case, the district court calculated Jardine’s base offense level under the
controlled substances guideline, as it found Jardine had conspired to possess or
distribute a specified amount of methamphetamine. 2
1
Section 2X1.1(a) reads in full: “Base Offense Level: The base offense
level from the guideline for the substantive offense, plus any adjustments from
such guideline for any intended offense conduct that can be established with
reasonable certainty.”
2
The commentary to § 2X1.1 states that the phrase “substantive offense” as
used in the guideline means “the offense that the defendant was convicted of
soliciting, attempting, or conspiring to commit.” USSG § 2X1.1, comment. (n.2)
(emphasis added). However, as discussed below, in United States v. O’Flanagan,
339 F.3d 1229, 1235 (10th Cir. 2003), we held § 2X1.1 “does not require a
conviction before a district court may use the guideline provision applicable to
(continued...)
11
At sentencing, the court also found there was no proof that the firearms that
sustained Jardine’s § 922(g) convictions were used in connection with his drug
trafficking activities. However, it determined that no such connection was
necessary under the language of § 2K2.1(c):
I don’t find any nexus between the two weapons in this
case and the weapons that are relied upon or – and the
drug offenses that are described in the sentencing
guideline; that is, none of the weapons were apparently
around drugs, were convenient to drugs or pointed at
somebody or brandished in a drug offense. Weeks,
months, half a year or more went by between those
instances.
On the other hand, for the application of that cross-
reference, I don’t think it is necessary that there be a
nexus because the cross-reference reads if the defendant
used or possessed any firearm or ammunition in
connection with the commission or attempted commission
of another offense or possessed or transferred a firearm or
ammunition or transferred ammunition with knowledge or
intent that it be used in connection with another offense,
then you apply [§] 2X1.1.
[Vol XIII, 65-66].
We interpret the Sentencing Guidelines as statutes, adhering to their “clear,
unambiguous language” unless there is “manifestation of contrary intent.” United
States v. Kravchuk, 335 F.3d 1147, 1158 (10th Cir. 2003), cert. denied, 124 S. Ct.
2
(...continued)
the conduct underlying the firearm offense.” The underlying conduct in
O’Flanagan was a robbery. Therefore, “substantive offense” in this case refers to
Jardine’s armed drug trafficking.
12
279 (2003). Unless the Sentencing Guidelines provide a special definition of the
particular term whose meaning is at issue, we give the language of the Guidelines
its ordinary meaning. United States v. Plotts, 347 F.3d 873, 876 (10th Cir. 2003).
The Guidelines do not provide a definition of the phrase “any firearm or
ammunition” as used in § 2K2.1(c)(1) and this circuit has not had occasion to
interpret the language. Jardine contends that in order for § 2K2.1(c) to be applied
the firearms that triggered application of the cross-reference must be the same
firearm or firearms that sustained his § 922(g) felon-in-possession convictions. We
disagree.
In United States v. Mann, 315 F.3d 1054 (8th Cir. 2003), cert. denied, 124 S.
Ct. 125 (2003), the Eighth Circuit rejected a nearly identical argument when it
concluded that the use of “any firearm or ammunition” in USSG § 2K2.1(b)(5), 3 a
provision similar to § 2K2.1(c)(1), indicates that the guideline “applies to any
firearm and not merely to a particular firearm upon which the defendant’s
felon-in-possession conviction is based.” 315 F.3d at 1056. In so holding, the
3
If the defendant used or possessed any firearm or
ammunition in connection with another felony offense;
or possessed or transferred any firearm or ammunition
with knowledge, intent, or reason to believe that it
would be used or possessed in connection with another
felony offense, increase by 4 levels. If the resulting
offense level is less than level 18, increase to level 18.
USSG § 2K2.1(b)(5).
13
Mann Court noted that § 2K2.1(b)(5) is a far-reaching enhancement and its
reference to “any firearm” is unambiguous in the context in which it is used. Id. It
also observed, as has the Eleventh Circuit, that the Sentencing Guidelines
themselves recognize the distinction between “any” and “the” in the context of
firearm enhancement provisions: “When any firearm or ammunition will do, the
Guidelines use the nonspecific phrases ‘any firearm or ammunition,’ see, e.g.
USSG § 2K2.1(b)(5), or ‘a firearm or ammunition,’ see, e.g. § 2K[2].1(c)(1), rather
than the specific phrase ‘the firearm or ammunition.’” Id. (quoting United States v.
Sutton, 302 F.3d 1226, 1227-28 (11th Cir. 2002)).
We believe the reasoning of Mann applies with equal force here and hold that
§ 2K2.1(c)(1) also applies to any firearm or ammunition. As with § 2K2.1(b)(5), §
2K2.1(c)(1) has been interpreted to be a far-reaching enhancement. See United
States v. Willis, 925 F.2d 359, 361-62 (10th Cir. 1991) (section 2K2.1(c)(1)’s cross-
reference permits a sentencing court to consider other offense conduct, even though
defendant was only convicted of being a felon-in-possession of a firearm and
possessing an unregistered firearm). Further, § 2K2.1(c)(1)’s reference to “any
firearm or ammunition” is unambiguous and we must give the phrase its ordinary
meaning in the absence of a manifestation of contrary intent by Congress.
Accordingly, we hold that § 2K2.1(c)(1) applies to any firearm or ammunition,
including that firearm or ammunition used by a defendant in connection with
14
another offense, even if different from the particular firearm or ammunition upon
which defendant’s felon-in-possession conviction is based.
Our holding is supported by two further considerations. First, the Guidelines
require courts to consider all relevant conduct when determining the sentencing
guideline range. See USSG § 1B1.3 (defining relevant conduct); United States v.
Mendez-Zamora, 296 F.3d 1013, 1020 (10th Cir. 2002) (Guidelines require that all
relevant conduct be considered at sentencing), cert. denied, 537 U.S. 1063 (2002).
As noted above, § 2K2.1(c)(1) provides for enhancement of the offense level if the
defendant “used or possessed any firearm or ammunition in connection with the
commission or attempted commission of another offense.” USSG § 2K2.1(c)(1).
Jardine’s use of firearms in past drug transactions and his admitted trading of
ammunition for methamphetamine is therefore clearly relevant to his sentencing on
felon-in-possession charges.
Second, as Mann recognized, Jardine’s proposed reading of the guideline
would lead to an absurd result. See Mann, 315 F.3d at 1056. His proposed
construction would benefit those criminals who are not apprehended with the exact
firearm they used or possessed in connection with the commission of another
offense. In such a case, the government would be precluded from seeking
§ 2K2.1(c)(1)’s enhancement even when it is undisputed that the defendant used or
possessed a firearm, unless it could actually prove it was one of the exact weapons
15
for which the defendant was charged under 18 U.S.C. § 922(g). See id. Such a
result is contrary to the clear intent of the Guidelines.
B.
We also reject Jardine’s contention that application of the cross-reference
violates his right to due process because, although he was not charged with or
convicted of drug trafficking, Jardine was nonetheless sentenced under the
controlled substances guideline. In United States v. O’Flanagan, 339 F.3d 1229,
1235 (10th Cir. 2003), we concluded that Ҥ 2X1.1, when cross-referenced by
§ 2K2.1(c), does not require a conviction before a district court may use the
guideline provision applicable to the conduct underlying the firearm offense.” We
also held that a defendant cannot assert a due process claim under Apprendi v. New
Jersey, 530 U.S. 466 (2000), if his sentence does not exceed the statutory maximum
for his underlying conviction. Id. at 1232, n.2 (citing Harris v. United States, 536
U.S. 545, 558, 565 (2002)). In this case Jardine’s sentence of 108 months
imprisonment is within the 120 month statutory maximum established by Congress
for violations of § 922(g). Therefore, O’Flanagan is dispositive of his claim.
C.
Finally, Jardine maintains that his prior use and possession of firearms, even
if proved, was too remote in time to constitute “relevant conduct” under the
Guidelines. We note that the district court made no specific findings relative to
16
this issue. We may address the issue here, however, because “we are free to affirm
a district court decision on any grounds for which there is a record sufficient to
permit conclusions of law, even grounds not relied upon by the district court.”
United States v. Roederer, 11 F.3d 973, 977 (10th Cir. 1993) (internal quotations
omitted).
Under USSG § 1B1.3 the Guideline range for an offense must be determined
on the basis of all relevant conduct, see United States v. VanMeter, 278 F.3d 1156,
1166 (10th Cir. 2002), including prior criminal acts that are “part of the same
course of conduct or common scheme or plan as the offense of conviction.” USSG
§ 1B1.3(a)(2). This circuit has construed broadly the meaning of relevant conduct.
See United States v. Asch, 207 F.3d 1238, 1243 (10th Cir. 2000).
The commentary to the Guidelines explains what constitutes “the same
course of conduct”:
Offenses that do not qualify as part of a common scheme
or plan may nonetheless qualify as part of the same course
of conduct if they are sufficiently connected or related to
each other as to warrant the conclusion that they are part
of a single episode, spree, or ongoing series of offenses.
Factors that are appropriate to the determination of
whether offenses are sufficiently connected or related to
each other to be considered as part of the same course of
conduct include the degree of similarity of the offenses,
the regularity (repetitions) of the offenses, and the time
interval between the offenses. When one of the above
factors is absent, a stronger presence of at least one of the
other factors is required. For example, where the conduct
alleged to be relevant is relatively remote to the offense of
17
conviction, a stronger showing of similarity or regularity
is necessary to compensate for the absence of temporal
proximity. The nature of the offenses may also be a
relevant consideration.
USSG § 1B1.3, comment. (n.9(B)) (emphasis added).
In our view, there is ample evidence in the record to support the conclusion
that Jardine’s past use of firearms during drug trafficking was part of the “same
course of conduct” as the offense of conviction. Several individuals made off-the-
record proffers and gave Mirandized statements that showed Jardine regularly
possessed firearms when purchasing or selling methamphetamine. Although some
of these instances occurred up to two years before Jardine’s arrest, the similarity
and regularity of the offenses demonstrates that they were part of an ongoing series
of offenses or a pattern of conduct – namely, Jardine’s unlawful possession of
firearms. See Roederer, 11 F.3d at 979 (10th Cir. 1993) (“same course of conduct”
inquiry focuses on whether defendant has engaged in an identifiable “behavior
pattern” of specified criminal activity). But see United States v. Cross, 121 F.3d
234, 238-40 (6th Cir. 1997) (rejecting use of conduct that, although it occurred in
the course of defendant’s overall drug dealing, was not connected to the one drug
distribution of which he was convicted).
IV.
For these reasons, we AFFIRM the district court’s denial of the motion to
suppress and AFFIRM Jardine’s conviction and sentence.
18
F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
MAY 12 2005
UNITED STATES COURT OF APPEALS
PATRICK FISHER
Clerk
TENTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee,
v. No. 02-8110
D. of Wyo.
ANDY JARDINE, (D.C. No. 02-CR-38-1J)
Defendant-Appellant.
ORDER ON REMAND
Before LUCERO , PORFILIO , and TYMKOVICH , Circuit Judges.
A jury convicted Andy Jardine of violating 18 U.S.C. § 922(g). The pre-
sentence report (PSR) recommended several enhancements to Jardine’s sentence,
to which he objected on factual and constitutional grounds. The district court
overruled his objections and ultimately sentenced Jardine to 108 months
imprisonment.
Jardine filed a timely appeal with this court alleging the sentence violated
his constitutional rights. We affirmed Jardine’s sentence. See United States v.
Jardine , 364 F.3d 1200 (10th Cir. 2004). Jardine then timely filed a petition for
writ of certiorari with the Supreme Court of the United States asserting his
sentence violated his constitutional rights. After the Court decided United States
v. Booker , 125 S. Ct. 738 (2005), it granted the writ and remanded to this court
for further consideration. See Jardine v. United States , 125 S. Ct. 1024 (2005).
As a result, we requested supplemental briefing in light of Booker .
Jardine requests that we remand for re-sentencing and the government
concedes the existence of constitutional error in this case and urges us to remand
to the district court for re-sentencing in accordance with Booker . Accordingly,
we REINSTATE our previous opinion except for the portion affirming Jardine’s
sentence, and REMAND for re-sentencing in accordance with Booker . The
mandate shall issue forthwith.
Entered for the Court
Timothy M. Tymkovich
Circuit Judge
2
United States v. Jardine
Court: Court of Appeals for the Tenth Circuit
Date filed: 2005-05-12
Citations: 406 F.3d 1261
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